Tuesday, April 26, 2011, the United States Supreme Court will hear oral arguments in Sorrell v. IMS Health, Inc, et al. The case focuses of the ability of states to protect the confidentiality of health care date, specifically the ability of states to restrict the use of physician-identifiable data for the purpose of pharmaceutical marketing. American University, Washington College of Law’s Program on Information Justice & Intellectual Property’s Sean Flynn and Meredith Jacob had previously filed an amicus curiae brief in this case. The brief, filed on behalf of AARP and the National Legislative Association on Prescription Drug Prices, argued that the Supreme Court should not limit this valuable tool for protecting medical privacy and controlling prescription drug prices. This case raises central questions about the interplay of privacy protections and the First Amendment, and will set the stage for upcoming decisions about consumer privacy, consent, and the sale of data.

Background

This case involves incredibly important information privacy
concerns. The Supreme Court has repeatedly held that there is a “Constitutional
interest” of governments in protecting the privacy of information transmitted
to commercial entities through commerce. The interest here could not be more
weighty. This case deals with the confidentiality of prescription records that
contain intimate details about the medicines we take. The respondents purchase
prescription records from pharmacies to track individual patients and their
race, weight, gender, medical condition, prescription history and a host of
other identifiers and link that information to doctor identities. They use this
information in complex databases to target marketing at convincing doctors to
switch patient prescriptions to more profitable drugs. This practice is illegal
in all of Europe and much of Canada because of the robust information privacy
protections in those countries that ban companies from trading identifying
information without the identified people’s consent. The companies in this case
argue that similar privacy protections are unconstitutional in the U.S. because
it invades there commercial speech rights.

Is Sale and Use of
Data for Marketing First Amendment Speech?

There is no commercial speech interest here. This case
involves consumer surveillance not commercial speech. Only the latter is
protected by the First Amendment. The commercial speech doctrine serves
consumer interests in being fully informed of products and services on the
market by providing limited protection from government regulation of
advertisements and other speech to consumers describing their products and
proposing commercial transactions. Pharmaceutical companies engage in
commercial speech when they advertise their products through media and
in-person sales calls to doctors. The commercial speech doctrine does not,
however, extend protection to every use of information by private firms to
target their marketing efforts. The respondents are not communicating with
potential buyers when they monitor the prescribing practices of physicians, and
therefore this practice is not accorded protection under the First Amendment.

Even if Viewed as First-Amendment
Protected Speech, States can Regulate the Sale and Use of
Prescriber-Identifiable Data

Even if the trade in prescription records was deemed to be
speech, there are overwhelming societal justifications for its regulation. When
governments require the disclosure of personally identifying information, such
as that required on prescription records, privacy interests demand that
governments ensure that the information is safeguarded from unwarranted
disclosure. In addition, an abundance of social science evidence demonstrates
that undue influence of pharmaceutical marketing over the prescribing choices
of physicians and other health professionals compromises a central value of our
health system – that medical decisions be based on evidence, not on personal
relationships, marketing influence or the hope for pecuniary reward. Permitting
pharmaceutical marketers to track prescribing choices and use that information
to tailor commercial messages and target gifts and enticements exaggerates
undue influence of pharmaceutical companies in our health system that raises
health care costs, promotes irrational drug selection, threatens professional
integrity, compromises patient privacy and increases the prevalence of
harassing marketing practices. States have an overriding interest in combating
these social ills.

Safeguarding the confidentiality of prescription records
from commercial marketing purpose is a serious public policy issue. At least 14
states have introduced statutes restricting the sale of physician identifiable
prescription data.

States Interests
Served by the Protection of Prescription Confidentiality

Giving pharmaceutical companies access to the specific
prescribing history of doctors involving every one of their patients is
invasive and damaging to the doctor patient relationship.

Access to prescribing history undermines the effectiveness
of the FDA in regulating pharmaceutical marketing messages.As we’ve seen in a number of off-label
marketing and marketing fraud cases, pharmaceutical marketing is constantly
pushing the boundaries of truthful promotion of their products.

The availability of this data creates an immediate and
inescapable conflict of interest for sales representatives.On one hand they are held out as source of
medical information, yet on the other, they are paid based on the increase in
prescriptions among the physicians they market to.

Expensive brand name medicines are aggressively marketed before
there is a sufficient safety record.FDA
approval is a starting point, not an end point.This sort of aggressive marketing fuels the overuse of the newest
medicines, such as the rapid adoption of Vioxx, before the risks are fully
understood.

Prescribing decisions should be made based on the best
interest of the patient and nothing else.This marketing data is gathered without consent from patients of
physicians, and then used to skew prescribing decisions for non-medical
reasons.

2d Circuit Decision
Calls in to Question Other Privacy Protections

If the Supreme Court finds that these laws violate the First
Amendment, then there can be few limits on the re-disclosure of private
data.Do-not-Call lists, the Driver
Privacy Protection Act, laws limiting the sale of information about video
rental choices -- all would be called into question were this law overturned.
President Obama just signed S3386, the ‘‘Restore Online Shoppers’ Confidence
Act’’ to prevent “data pass” where one online merchant passes billing data to
another to facilitate aggressive marketing and streamlined purchase of add-ons
a consumer had not intentionally purchased.Under the logic of the Respondents, this law would violate the 1st
amendment, because it restricts the transmission of data from one holder to a
third party.

Increasingly, all transactions we conduct generate data, and
storage of our data takes place online.It would be a dire mistake to find that any intermediate holder of that
information has a first amendment right to sell it to the highest bidder.